OPM Proposes Prioritizing Job Performance Over Tenure in Layoffs

The Office of Personnel Management on Thursday proposed regulations that would prioritize employees’ recent performance over their length of service when agencies decide who to lay off during reductions in force.

A proposed rule published in the Federal Register would implement a provision of President Trump’s May 2018 executive order streamlining the federal firing process that says agencies should consider performance over seniority when processing reductions in force. President-elect Biden has vowed to reverse the order, along with a slew of other anti-union executive actions, when he takes office next month.

Currently, when agencies institute a reduction in force, they consider type of employment—whether a worker is a career, probationary or term employee—followed by veterans’ preference, length of service and performance. The results of employees' annual performance reviews are converted to what are essentially bonus years to be added to their length of service. 

OPM’s proposal would place employees' most recent three performance ratings ahead of veterans’ preference and their length of service, a move that effectively makes length of service a “tie-breaker.”

“Agencies will list competing employees on the retention register in descending order (within the same tenure group) based on the total of their three most recent ratings of record,” OPM wrote. “OPM believes listing employees in descending order (i.e., highest to lowest) based on their total summary level rating for the three most recent ratings of record is the most objective methodology for these purposes, and best implements the principle of emphasizing performance over length of service as set forth in [the executive order].”

The proposed rule comes at an awkward time. OPM will accept comments for the next 30 days, leaving little time to review and respond to the public’s input as required under the Administrative Procedure Act before the inauguration of Biden, which would likely halt the rule’s implementation. The Trump administration has already come under fire for its expansive use of so-called “midnight regulations” and rulemaking processes with abridged, or nonexistent, public comment periods.

It also comes as more agencies have come under renewed scrutiny of how they treat and evaluate minority employees. In October, the American Federation of Government Employees released data obtained via Freedom of Information Act request that found that white applicants to management jobs at the Veterans Affairs Department were twice as likely to be selected over their Black counterparts.

And the union’s council of locals at the Social Security Administration said last month that for years, that agency has consistently granted white employees an outsized share of the highest performance ratings compared with minority workers. Although Black employees at the agency made up 30.3% of the bargaining unit in fiscal 2014, they only received 21.7% of “outstanding” ratings.

The deadline to comment on OPM’s proposal is Jan. 15.